Marvin Rideout v. Harold Clarke


UNPUBLISHED PER CURIAM OPINION filed. Motion disposition in opinion--denying Motion certificate of appealability (Local Rule 22(a)) [1000055936-2]; denying Motion to proceed in forma pauperis (FRAP 24) [1000063796-2]. Originating case number: 3:16-cv-00190-MHL-RCY. Copies to all parties and the district court/agency. [1000152104]. Mailed to: Marvin Rideout. [17-6382]

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Appeal: 17-6382 Doc: 16 Filed: 09/08/2017 Pg: 1 of 2 UNPUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 17-6382 MARVIN RIDEOUT, Petitioner - Appellant, v. HAROLD CLARKE, D.O.C., Respondent - Appellee. Appeal from the United States District Court for the Eastern District of Virginia, at Richmond. M. Hannah Lauck, District Judge. (3:16-cv-00190-MHL-RCY) Submitted: August 30, 2017 Decided: September 8, 2017 Before WILKINSON, NIEMEYER, and FLOYD, Circuit Judges. Dismissed by unpublished per curiam opinion. Marvin Rideout, Appellant Pro Se. Rosemary Virginia Bourne, OFFICE OF THE ATTORNEY GENERAL OF VIRGINIA, Richmond, Virginia, for Appellee. Unpublished opinions are not binding precedent in this circuit. Appeal: 17-6382 Doc: 16 Filed: 09/08/2017 Pg: 2 of 2 PER CURIAM: Marvin Rideout seeks to appeal the district court’s order accepting the recommendation of the magistrate judge and denying relief on his 28 U.S.C. § 2254 (2012) petition. The order is not appealable unless a circuit justice or judge issues a certificate of appealability. 28 U.S.C. § 2253(c)(1)(A) (2012). A certificate of appealability will not issue absent “a substantial showing of the denial of a constitutional right.” 28 U.S.C. § 2253(c)(2) (2012). When the district court denies relief on the merits, a prisoner satisfies this standard by demonstrating that reasonable jurists would find that the district court’s assessment of the constitutional claims is debatable or wrong. Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v. Cockrell, 537 U.S. 322, 336-38 (2003). When the district court denies relief on procedural grounds, the prisoner must demonstrate both that the dispositive procedural ruling is debatable, and that the petition states a debatable claim of the denial of a constitutional right. Slack, 529 U.S. at 484-85. We have independently reviewed the record and conclude that Rideout has not made the requisite showing. Accordingly, we deny Rideout’s motion for a certificate of appealability, deny leave to proceed in forma pauperis, and dismiss the appeal. We dispense with oral argument because the facts and legal contentions are adequately presented in the materials before this court and argument would not aid the decisional process. DISMISSED 2

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